Basic Issues – Boundary Dispute Law Bloghttps://www.boundarydisputelaw.com
Mon, 21 Jan 2019 03:48:50 +0000en-UShourly1https://wordpress.org/?v=4.9.10America’s Most Valuable Master Mindhttps://www.boundarydisputelaw.com/basic-issues/americas-most-valuable-master-mind
https://www.boundarydisputelaw.com/basic-issues/americas-most-valuable-master-mind#respondFri, 04 Jan 2019 23:15:38 +0000https://www.boundarydisputelaw.com/?p=9916Continue Reading]]>Above is the painting Declaration of Independence by John Trumbull. At 12′ x 18′ it is the size of the footprint of my original office.

Yes, you’ve seen it before. An engraving of it is on the reverse of the $2 bill. The event which it purports to capture was also noted by Napoleon Hill Think and Grow Rich.

There, after noting history altering decisions by Lincoln, Socrates’ and Gen. Robert E. Lee, Napoleon Hill gives considerable treatment to those depicted by this master mind.

[T]he greatest decision of all time, as far as any American citizen is concerned, was reached in Philadelphia, July 4, 1776, when fifty-six men signed their names to a document, which they well knew would bring freedom to all Americans, or leave every one of the fifty-six hanging from a gallows! (Emphasis in original text.)

Yet, Napoleon Hill doesn’t leave it at that. He steps back to note that 22 months earlier an even more important decision occured on … September 5, 1974.

Remember this date. It is more important than July 4, 1776. If there had been no DECISION to hold a Continental Congress, there could have been no signing of the Declaration of Independence. (Emphasis as to “DECISION” in original text.)

Now, I will admit that the first couple of times I read Napoleon Hill’s historical accounts here, I did not find myself all that engaged.

It is clear to me now that the reason for this is that I wasn’t yet dialed into what Napoleon Hill was seeking to convey.

The Master Mind not only gave the first few people involved in planning ideas, but it also allowed them to amplify each other’s support for the cause that they shared.

With that level of confidence, they were able to make a decision … which importantly they adhered to as to their actions.

I’m also struck by the fact that a solid decision appears to open up the opportunity for additional decisions.

True, one of the omnipresent decisions available to people is to quit. I can’t tell you how many times this has been my thought too.

As I have indicated a number of times, there is a considerable portion of the work that I don’t enjoy … and I felt that what I was doing was meaningless.

Now, on the verge of moving on from everything that I have done, I realize that I need not and should not throw the baby out with the boundary dispute law bath water.

Instead, I have DECIDED to open a second blog. I will seek to still assist clients to sort out their real property issues.

But, I feel duty bound to at least attempt to demonstrate to them in the majority of situations – and certainly those in which they think that Justice is simply going to fall in their lap – that they ought to reconsider and instead seek to reinvent themselves.

I figure if I have these two blogs going, I will be able to exercise the demons I encounter working with and for people by means of BoundaryDisputeLaw.com and I will be able to think positively about life in an effort to help both myself and others by developing content for BoundaryBreakthrough.com.

In this way, I will be able to retain my stated, albeit seemingly saccharine purpose:

TO PROMOTE PEACE AMONG NEIGHBORS SO THEY MAY SEEK TO JOIN THE LUCKY FEW WHO CAN LOVE THEIR FAMILY, THEIR FRIENDS AND ALL OTHER PEOPLE OF THE EARTH.

Yes, my heart remains set on securing the job which will be the best match at Tableau Software.

No, I can not quit my vision. It’s just too important!

Believe me, if I could shake this calling, I would have a long time ago.

It’s time for me to really get to work. We have a messy world that needs to be placed in order.

Neighbor law is nothing less than war writ small and nobody can truly afford a war with their neighbor … even if they think they can. Sincerely.

This matter is not strictly similar to a boundary dispute between neighbors because neither side is seeking to redefine the location of the line.

What is at issue is at issue which is very similar to boundary disputes is that at least one side wants to be clear as to what is acceptable on its side of the line.

The other side doesn’t seem to give a hoot what happens. Though not wanting to minimize the issue, a large degree of the debate can be analogized to a neighbor who likes to maintain a pristine yard getting frustrated with the neighbor who has an unruly tree which is unmaintained and sheds its leaves onto the first neighbors lawn.

In most boundary disputes there is some degree of what I have come to call: “an external manifestation of an internal problem.”

There is plenty which has been said about President Trump regarding his uncommonplace antics to suggest that he is the one with the problem.

But that is an incomplete picture. In any boundary dispute, both disputants have a problem simply for the fact that there is a lack of harmony.

Who wants to be in harmony with Donald Trump? He certainly doesn’t make it easy!

But, to a certain extent – some much more and some much less – we all share aspects which are more pronounced in other people.

Trump appears to have a very dark side. This is a side which many seek to delimit exposure.

People do this because it is much easier to castigate that which is “out there” than to seek to change that which is “in here” … at a person’s core.

Trump is living this out too. He is on record as indicating that (some of) those who cross the border into the U.S. are “murderers and rapists.”

By building a wall – at least with respect to political symbolism – he is keeping that “element” at abeyance.

Perhaps a better way to consider what’s going on is that as – or at least a representative of a those who are – conservative, Trump exhibits one of the primary factors for which conservatives are known – low openness and low agreeableness.

For folks like this, that which is beyond the boundary – in this case normalcy and order – is a threat.

But instead of this being a threat which remains just that, because the border is porous … there is the perception of an invasion.

Overall, the whole thing seems silly to me. Because at the other end, it is in large part because of the liberal entitlements which appear to create the economic vacuum which the border crossers seek to illegally fill because people are unwilling to pay minimum wages for the value of work which falls below these arbitrarily identified values.

That is simple economics which is something it seems that most liberals are unwilling to publicly acknowledge.

To fully understand the perspective that conservative thinkers have with respect to the idea of building a wall, I encourage you to review this message from the late, Charles Krauthammer [HERE].

Krauthammer indicates that the wall serves the purpose of both allowing the illegal immigrants who are already here to have an amnesty – but not ability – to become citizens, but their children will be citizens while future illegal immigration is prevented.

When viewed in this light and as expressed calmly by Krauthammer, the border wall actually does make sense.

The problem is that we have a deal maker in the role of president, who fails to alter his conduct from that of a top-down businessman to a consensus building politician.

I suspect that Trump will wait this governmental, shut-down out and get his wall not just for what it represents to America, but also because he can’t lose by not holding pat to this position.

If he compromises here, there will be a perception that there is blood in the water and the investigations against him will gain additional momentum.

On the other hand, if he is forced out there will be plenty of backers that indicate that the president that they sought to have represent them was illegitimately pushed out and point to his iron will to hold fast on the point of the border wall.

Trump appears to be someone who enjoys the game in the moment and this is just another one of the many moments that we will see from him. I have no doubt he will find an exit.

Is all of this making America better? That’s really hard to tell. But, if the legacy of the Trump presidency becomes that of a nation which comes together across political lines to expel that which is deemed abhorrent – the incivility which is so much a centerpiece of Trump’s personality – he might actually turn out to be one of the greatest presidents … despite himself!

—

Photo Credit: U.S. Customs and Border Protection as per https://abc3340.com/news/nation-world/go-fund-me-launched-to-pay-for-trumps-border-wall-nears-1m-in-two-days

]]>https://www.boundarydisputelaw.com/basic-issues/border-wall-chaos-ruminations/feed0Burning Desire To Promote Prosperity and Peacehttps://www.boundarydisputelaw.com/basic-issues/burning-desire-to-promote-prosperity-and-peace
https://www.boundarydisputelaw.com/basic-issues/burning-desire-to-promote-prosperity-and-peace#respondMon, 17 Dec 2018 06:31:31 +0000https://www.boundarydisputelaw.com/?p=9781Continue Reading]]>Now that I have crawled out of Plato’s Cave – or out from under the rock of the practice of boundary dispute law – to get my bearings in the “blinding sun,” I have decided it worthwhile to do a series about my impressions of Napoleon Hill’s Think and Grow Rich.

I have a couple of reasons for doing so. First, I want to be able to understand this information as best as I can, so I can move forward to “rejoin humanity.”

Second, I want to document this moment so that if I ever feel doubtful about what I am doing again and imagine throwing in the towel, I’ll know that instead of using burning desire to propel a forward path, I may instead find myself immobilized by the flames of hell.

Amazingly, there can be friendly lawsuits in this area of law. This is akin to an amicable divorce. Much the same as a divorce, it may be realized that the matter is strictly a legal issue. Instead of needing the court’s help to sever the marital knot, help is needed redrawing the neighbor’s line.

This not the most common experience. Most often, boundary disputes are the “external manifestation of an internal problem.”

Helping steer people out of their personal hells in which they projected the worst – and not self-recognized parts of themselves – upon that of their neighbor … and vice versa is the spy v. spy world in which I operated.

[As an aside to self, my work in this arena was the emotional equivalent of the intellectual equivalent I was advised when I went the second time to China by my mentor who stated: “International business is like James Bond without a gun.”]

The emotional reality is that the DMZ – even though insignificant to others – is as intense as a firestorm.

Here, I recall that as a child I had wanted to be a fireman and though I didn’t enter into the normative definition of this profession, it appears that I did back into exactly what I wanted … and have been scorched on more than just a few occasions as a result.

The work has been an intellectual challenge, but more importantly the work has allowed me to forge an unshakeable emotional fortitude that I simply did not previously have.

Was the decade a loss? With one exception, I can say unequivocally: “NO.” I have found the reserves not only to survive but thrive.

What’s that one exception though? It has been that I have been preoccupied as my children have done most of their growing up. That is the one thing I most regret, but regret is just another way to sit down within the flames and just allow oneself to be overcome. Absolutely nothing good can come from it.

I am currently involved in the simultaneous process of winding down my practice and with a few of the embers, I will flame my newly directed passion.

On the back of my business card, I had wrote my purpose as:

To Promote Peace Among Neighbors So They May Seek To Join The Lucky Few Who Can Love Their Family, Their Friends And All Other People Of The Earth.

That is a rather lofty goal. One which is rather saccharine too. But, it is the goal I was able to find in the pit of hell as a way of justifying my life instead of determining to live out the remainder of my days screaming the words of Ecclesiastes: “Meaningless, Meaningless, Utterly Meaningless, … Everything is Meaningless.”

So then, has that purpose changed? Well, though I am confident that I will wordsmith it again as I gain increasing clarity as to my target. But no, the overall message remains.

Though I have been working in my nano-niche which is “war writ small,” the world requires my understanding of the deep corridors of hell AND the ability to identify the commonality of those on the other side of the line through the unique experience of living and working deep oversees, in order to foster prosperity and peace.

For the past couple of decades we have been engaged in a ever worsening political cycle to the point that we seem to have lost almost all of our ability to engage in robust, albeit civil, discussion.

But as we in America burn, not only are we losing influence with the rest of the West – which is not in good shape either – the Eastern Star of China is ascending.

How are we going to peacefully going to integrate the best of bost worlds? That’s got to be a huge part of my mission. We fail to get that right and sooner or later … we will all burn!

Facial recognition can be a positive force for good. But we need to act to regulate this new technology, before we find that it is used in ways that discriminate, invade privacy, or undermine human rights. We’ve laid out our suggestions on how we can get started and the principles Microsoft will adopt. – Brad Smith, MSFT’s CLO

The picture and quote above is the huge fish I pulled out of my LinkedIn stream last night. I think it demands greater comment than I provided there. Anyone want to open up?

]]>https://www.boundarydisputelaw.com/basic-issues/msfts-proposed-facial-recognition-regulation-factors/feed0Let it Be?https://www.boundarydisputelaw.com/basic-issues/let-it-be
https://www.boundarydisputelaw.com/basic-issues/let-it-be#respondTue, 26 Jun 2018 20:18:09 +0000https://www.boundarydisputelaw.com/?p=9727Continue Reading]]>You just found out that your neighbor has “something” located beyond what the survey line indicates onto your property. The “something” could be their fence, their patio, their shed, or any other number of items made by hand or nature – including trees, shrubs, or garden. What should you do about it?

A. Rip that “something” out of the ground and fling it to the neighbor’s side of the line.

B. Carefully remove that “something” and gingerly place on the neighbor’s side of the line.

C. March right over to your neighbor’s house and tell them they need to move it themselves.

D. Call the neighbor up; send them an email; or perhaps even post a “nice” note to them.

E. Let it be … and call a boundary dispute attorney to determine your rights.

The answer is: E.

If you just discovered this issue because your surveyor revealed it to you, then there is a fair chance your neighbor has an unperfected claim to a portion of your land.

Instead of communicating with your neighbor in an uninformed writing which serves to send them running to their own attorney, it is better to consult with your own attorney first. This gives you the proper ammunition and aim before you shoot off a writing which if the matter escalates becomes evidence.

If you don’t have a legal leg to stand on, the best approach is to “let it be”. Wait until your neighbor lists their property for sale to move forward. Then seek to sort the matter out because this is when you have the greatest leverage to sort the matter out quickly.

If the matter is a toss-up, then having an attorney work through the situation with you and your neighbor (and their attorney) in an amicable fashion is usually the best approach. If the neighbor is one who needs to be persuaded, you have someone right there ready to go who has a sense of the case and the players involved already.

If the matter is iron-clad on your side, then you won’t have given the neighbor evidence which “can and will be used against you.” Let an attorney who knows how to communicate with legal clarity do this for you instead.

Ok, so that knocks out all the possibilities in answer: D. Answer C, should be analyzed in the same way except it becomes more complex because by having a verbal exchange with your neighbor there is now a “he said/she said” which will need to be expensively explored.

Items A and B, in which items over the land are removed, should be rejected out of hand. Unless absolutely certain your neighbor is wrong, if you damage their property, you will have handed them a claim for Waste.

Waste statutes RCW 4.24.630 (Damage to Land and Property) and RCW 64.12.030 (Timber Trespass) both have fee shifting provisions which allow the opposing attorney’s reasonable fees to be paid by you should a court find you were in the wrong and that the land has actually become your neighbors.

This is critical because there are a lot of hungry attorneys who don’t mind selling their clients on the idea that they will do their level best to seek to have their fees shifted to them from you without also indicating that in most cases the matter gets settled long before trial. The results at best for them after you and your neighbor have spent a heck of a lot of money is only the shifting of one thing – dirt.

By the process of elimination, the answer is: E.

‘Let it be, first talk to me … and the rest of the team at Justice Smiles.’ Cheers!

]]>https://www.boundarydisputelaw.com/basic-issues/let-it-be/feed0Thompson v. Schlittenhart – Case Reviewhttps://www.boundarydisputelaw.com/basic-issues/thompson-v-schlittenhart-case-review
https://www.boundarydisputelaw.com/basic-issues/thompson-v-schlittenhart-case-review#respondThu, 13 Jul 2017 21:28:12 +0000http://www.boundarydisputelaw.com/?p=9582Continue Reading]]>Some boundary dispute cases involve a little bit more than the parties’ contrary claims of adverse possession and quiet title to the recorded real property. No, sometimes the professionals can make bank by engaging in a contest in which one of them will ultimately end up the butt of the joke. [1]

That’s what happened in Thompson v. Schlittenhart. [2]

Basically, the common grantors made an original goof such that the legal descriptions which ought to have met at an adjoining line did not.

The first surveyor – hired by Thompson – did everything he could to figure the mess out but ultimately acknowledged that there was imperfect closure of the survey after examining:

the deeds of the surrounding properties, the conveyances of the Thompsons’ predecessors in interest, an unrecorded plat referred to in the Thompsons’ deed, monuments on the ground and county road maps to determine the intent of the initial common grantors.

Now, I don’t know if this surveyor charged extra for all that work. But, I suspect there is a high likelihood that this “meal” was “prix fixe” – i.e. flat fee – and so the matter became an intellectual puzzle to be solved at his honor.

At any rate, this first surveyor ultimately figured that the adjoining property line was probably along a barbed wire fence which had been in place since 1953 as opposed to the chain link fence 12 feet “inside” it which Thompsons themselves had built in 1969.

Tough schlitz to the Schlittenharts who were now pronounced not to have owned the “DMZ” between these two fences?

Heck no! On their behalf in came surveyor two … and let’s see how that worked out. To wit, surveyor two:

[E]xamined much the same information and used the same procedure as [surveyor I], but determined that the county road to the east of both properties was 60 feet wide rather than 40 feet wide and used the calls exactly as they were found in the Thompsons’ deed. … Because his survey would make the southern boundary of the Thompsons’ and Schlittenharts’ properties not a straight line, [surveyor II] did not believe that his survey reflected the intent of [the common grantors], but saw his duty as faithfully following the description in the Thompsons’ deed. Emphasis added. [3]

‘What we’ve got here is failure to communicate. Some men you just can’t reach.” [4]

Surveyor 2.0 is pejoratively called a “deed staker”. He ‘slaps down the math’ and then tells people something along the lines of: ‘Gosh, you better go get an attorney. This is a mess!’

In this matter it turned out that Thompsons decided not to wait for that to happen; they initiated suit against Schlittenharts.

So, the trial court made its determination that the first surveyor knew what he was doing and as such the Thompsons prevailed. So of course then Schlittenharts appeal.

The appellate court offered a logical series of rules for determining Grantor’s Intent.

That information makes this case extremely valuable as guidance for surveyors [and attorneys] seeking to do their jobs right when the language in the deed just doesn’t fly.

As a result, the appellate court upheld the decision that the first surveyor knew what he was doing.

The appellate court then went on to recognize the trial court’s finding that the “DMZ” between the two fences had not been used exclusively by either party. [5]

Apparently, both parties had advanced claims of adverse possession in case declaratory relief of the line didn’t play to their favor.

The upshot was that Schlittenharts hadn’t adversely possessed for failure of exclusivity and Thompsons had failed simply because “[a] person cannot adversely possess his own property.”

And then we find out one last thing: “The Schlittenharts raise several other issues on appeal which were not raised at trial. These issues will not be considered. RAP 2.5(a).” [6]

In other words, the attorney dripped needless ink all over the appellate brief in a vain attempt to fashion arguments which simply could not be reviewed.

So what should we make of all this?

IMHO, someone should put a boot in both of Schlittenharts’ hired hands’ booties!

Bottom line, don’t be a “Schlitthead” and hire an idiot surveyor and then compound matters by then hiring a stupid lawyer.

Assuming you want to do things correctly, you can start along the right trail by instead taking Justice Smiles’ Initial Assessment [HERE].

[3] As a not so incidental aside, isn’t it curious that the two surveyors could deviate by 20′ as to the width of a county road? Folks, is it possible that the second surveyor might have done just a tad more due diligence vis-à-vis county records so as not to place his head up a situate where the sun doesn’t shine.

[5] Thompsons continued to mow the grass within the “DMZ” created by the original barbed wire fence and the later built chain link fence. What the Schlittenharts did in that area is not specified in the appellate opinion.

]]>https://www.boundarydisputelaw.com/basic-issues/thompson-v-schlittenhart-case-review/feed0Beating Your Neighbor Legally Senseless is Good for Themhttps://www.boundarydisputelaw.com/basic-issues/quickly-beating-your-neighbor-senseless-is-good-for-them
https://www.boundarydisputelaw.com/basic-issues/quickly-beating-your-neighbor-senseless-is-good-for-them#respondFri, 03 Feb 2017 01:01:07 +0000http://www.boundarydisputelaw.com/?p=9526Continue Reading]]>Many of us are aware of the 10,000 hour rule which Malcom Gladwell pointed out to the world in his book The Tipping Point.

Don’t know what I am talking about?

Well here is a quote apparently about the difference between good and great musicians which I found in my inbox from Brian Johnson of Philosophers’ note a few days ago which will help.

“The striking thing about Ericsson’s study is that he and his colleagues couldn’t find any ‘naturals,’ musicians who floated effortlessly to the top while practicing a fraction of the time their peers did. Nor could they find any ‘grinds,’ people who worked harder than everyone else, yet just didn’t have what it takes to break the top ranks. Their research suggests that once a musician has enough ability to get into a top music school, the thing that distinguishes one performer from another is how hard he or she works. That’s it. And what’s more, the people at the very top don’t work just harder or even much harder than everyone else. They work much, much harder. The idea that excellence at a complex task requires a critical minimum level of practice surfaces again and again in studies of excellence. In fact, researchers have settled on what they believe is the magic number for true expertise: ten thousand hours.” [Emphasis added.]

Well folks, as someone who has concentrated my practice exclusively on Real Estate Boundary Dispute matters for the last 8 years, I’ve put in a few hours.

So, though I may not know shinola about a lot of other areas of the law … I probably know this area better than you know the color of your spouse’s eyes!

Yes, I have seen a lot.

Though always game for to swap some new ideas with someone that also knows about this area of law in a robust exchange, the one thing I just can not abide are opposing counsel who help their clients cross the Rubicon – i.e. get beyond the point of no return – when their clients have neither the merits nor the intestinal fortitude to see the matter to its end point.

Notably, this is a litmus test that I put my own clients through. As I see it, that’s simply proper client management.

Not incidentally, it is also why I charge $750 for an initial office consultation. Likely the highest value that my clients pay to me … especially if they really don’t have what it takes to take it all the way. Perhaps I’ll expound on that point further in depth another day.

For now though, I want to return to the lawyer that has been approached by a client and is moving through the motions to sign them up … but doesn’t know this area of law and their client’s case is nonsense.

In those situations, it’s simply the best course for me to help you beat the smack out of your neighbors early, often, and unrelentingly until they realize this is one pissing match that isn’t going to get negotiated out in a “fair manner” after a period of long negotiation, litigation preparation and its follow through, or both.

Now how is this in your neighbor’s best interest?

Because now they don’t have to continue to pay their useless attorney any more to do “research” on something for which they aren’t possibly going to get results!

Of course taking your neighbor out quickly means that I can be released from your services early too … which is a very good thing.

So, do you want to find out if you can make a mash of your neighbor or whether the opposite will occur to you?

To get a free triage of your case before your neighbor does, please take a moment to connect by answering the questions to this initial assessment [HERE].

]]>https://www.boundarydisputelaw.com/basic-issues/quickly-beating-your-neighbor-senseless-is-good-for-them/feed0Perception Drives Understandinghttps://www.boundarydisputelaw.com/basic-issues/perception-drives-understanding
https://www.boundarydisputelaw.com/basic-issues/perception-drives-understanding#respondThu, 05 Jan 2017 20:24:21 +0000http://www.boundarydisputelaw.com/?p=9523Continue Reading]]>What would happen if people identified their legal rights as easily as they could identify their titled boundaries?

This is an interesting question. There would always be gaps and overlaps in understanding. But, just as importantly it helps us to realize how boundary dispute law is such an apt analogy for all law.

So, going to the concrete steps that most people exercise when seeking to figure out their titled boundaries – i.e. the limits of their legal rights – you start by hiring an expert. That expert though is not a lawyer.

That expert is a licensed surveyor who researches their title and that of their adjoining property owners; goes to the land to locate it in relationship with other known and commonly regarded monuments; and then often (but not always) will produce a survey exhibit which at minimum depicts the land and often demonstrates relationships of fixtures upon the land regarding the boundary.

Note for surveyors out there, I know this is a far too simplified identification of the work you do. We can go into many other facets, but let’s keep it simple for this exercise.

Now, with your boundaries determined, those people your boundaries are rubbing up against – i.e. adjoining – should understand them in the same way … right?

Well, this is where an old axiom comes in to do it wonders: “Where you stand is a function of where you sit.”

This is to say that your UNDERSTANDING of the situation is a function of your PERCEPTIONof it. And not incidentally, many if not most people believe they are “entitled” to everything they get.

Clarifying, where adverse possession is claimed, each party argues that they are entitled to real property – i.e. the territory of legal rights – along the farthest line of their perception of ownership OR that line which they are advised is theirs as a matter of ownership through their title.

Adverse Possession is essentially the claim: “You didn’t use it (whereas we did) for such a long time that it is unjust for you to seek to take it back and deprive us of it now.

This is why Adverse Possession is considered a Statute of Limitations. Statutes of Limitations are in place to eliminate liability for stale claims so people can get on living their life.

But, notice that the people “sitting” on the other side are also going by that same logic. It’s not that they necessarily want to take away someone else’s rightful property (although I won’t eliminate that as a possibility), it is that they don’t want to have the neighbor take property – “by title” – that is theirs away from them.

And this brings us right down to how we witness a fundamental schism in the law. There is Actual Notice and there is Constructive Notice.

Actual Notice makes perfect sense right? Well, go back up and read about all that gap and overlap business in perception if you thank that’s the case.

As to Constructive Notice, you MAY have heard it before most commonly expressed as the legal expression in Latin no less: Ignorantia juris non excusat.

For those without working knowledge of that dead language – like me – that bold quote means: Ignorance of the law is no excuse.

The opposite of the same means simply something like ‘Everyone knows the law.’ Really? I don’t think so.

If you have a boundary dispute here in Washington State and want to know more about the law (instead of Latin), take a moment to fill out this Initial Assessment [HERE].

]]>https://www.boundarydisputelaw.com/basic-issues/perception-drives-understanding/feed0What Are Legal Elements?https://www.boundarydisputelaw.com/basic-issues/what-are-legal-elements
https://www.boundarydisputelaw.com/basic-issues/what-are-legal-elements#respondTue, 03 Jan 2017 20:22:53 +0000http://www.boundarydisputelaw.com/?p=9501Continue Reading]]>Elements are generally regarded as basic principles or fundamental parts of something. Abstractly we might think of the letters of the alphabet as the elements of a word. Words then become the ‘parts of speech’ used to compose a sentence. Groupings of sentences are used to create paragraphs and then chapters and then books and then volumes and then libraries. I think you get the point.

More concretely, think of a periodic table from your chemistry class. The periodic table identified elements. In turn, these elements are used to make up compounds.

Interestingly, while law uses the complexity of the former – i.e. there are volumes and libraries dedicated to the law – at bedrock any legal claim must satisfy a particular set of legal elements. So …

Think of legal elements as a checklist.

A claimant must check off every fundamental part – i.e. element – of a legal claim in order for the claimant to carry the burden of proof. When this happens, the claimant has demonstrated the other party has failed to fulfill the duty of restraining from doing that which is claimed against them.

This also means that if the party resisting a claim can nullify – i.e. demonstrate the absence – of any element, then that party has successfully defended against the claim because the claimant hasn’t satisfied the burden of proving that failure of legal restraint.

To digress further to regard tactical matters for those resisting claims (generally known as “defendants”), note except for the extraordinarily odd cases in which concentration on nullifying one or two specific elements would diffuse the fact-finders understanding of the facts, all the elements of any claim made against a defendant should be challenged.

Why? Again, because it just takes “knock down” of one element to destroy the claim altogether.

Now on the other side for the claimant, is this idea of seeking to “cover the waterfront” a wise strategy? The answer generally is that it is not.

There may be several differing claims, but at least in boundary disputes, it is generally best to make sure that each claim is distinct and supported by its own facts.

In this way, the facts can be focused to make sure that they are presented most persuasively. Why?

When one is making a claim, one is seeking to persuade that the facts – which we must remember can be undermined – should be recognized in such a way as to demonstrate that each element of the claim are made.

True, the advantage of making inconsistent pleadings is that if certain facts don’t hold up, there might be another way to interpret the facts to allow a similar legal endpoint.

But, if the facts are wishy-washy, perhaps the case is too. In that situation, do you really want your claim to be passed up to the judge to then ask essentially: “Though we don’t know what is going on here, will you figure it out … to our advantage.”

That’s just not real world. And yet, often we see alternative pleadings. Why?

]]>https://www.boundarydisputelaw.com/basic-issues/what-are-legal-elements/feed0Cautiously Evaluate Any Self-Help Optionhttps://www.boundarydisputelaw.com/basic-issues/cautiously-evaluate-any-self-help-option
https://www.boundarydisputelaw.com/basic-issues/cautiously-evaluate-any-self-help-option#respondSun, 01 Jan 2017 23:02:43 +0000http://www.boundarydisputelaw.com/?p=9494Continue Reading]]>Self help is the concept that one takes matters into their own hands … and gets them nice and dirty!

Generally, self-help will occur when owners of real property believe certain real property is theirs and they then take some sort of action to clarify that understanding.

What follows often is a call by an affected neighbor to the police who inevitably come out not to solve the problem but rather to confirm that there is not a “breach of the peace.”

Basically, this police call is a precautionary step to make sure weapons don’t come out and that the neighbors simmer down. Ultimately though, the police indicate that the aggrieved party should consult an attorney.

First, notice that the neighbors using self-help “believes that certain real property is theirs”. Here, “believes” and “knows” are different things.

Also, never confuse what a surveyor indicates as your property without first reviewing a sufficiently complete set of facts with a legal evaluator so that you can properly assess the risk that your understanding of your ownership is unfounded and the risks associated with your actions.

Second, notice that the neighbor who is causing the disruption thinks the real property is theirs but instead of speaking to their neighbor “using their words” they just act out.

That sounds like someone didn’t learn how to act in preschool and indeed people who use methods of self-help are often perceived as bullies by the other side.

What this suggests then is that you better be very certain if you are going to make a self-help attempt.

Now these first two ideas should be contrasted with the risk of having the conversation … or more properly correspondence.

[Yes, you should seek to put everything about this in writing. And guess what that means? You guessed it. It means that you should get advice as to what should be in and what should be out.]

Back to the point of the positives associated with the use of self-help, notably it may be more strategic not to signal your intentions to your neighbors beforehand and instead just get in there and do it.

On this score, it is much easier to destroy than to build. The practical upshot of this might be that you remove a fence. But be careful here because removing an existing fence might be determined a wrongful act and thus submitting you to a liability which might create a shifting of attorneys fees and costs.

But you are not done here are you? You now have to get a new fence up … right? And don’t you think that there is a smidge of a chance your neighbors will make it difficult for you to build your fence either by use of legal process or self-help of their own?

Bottom-line, self-help should only be used after extremely careful calculation of the risks and rewards after careful consultation.

Listen, even if you don’t give a hoot about your neighbor, you still owe it to yourself to talk to a lawyer before doing something drastic which is going to cause a rumpus costing untold hand-wringing, several tens of thousands of dollars, and most importantly time.

Of all the insurance that you “might take out” to assure peace of mind, pay for an evaluation and any necessary interaction to prevent what often is a fairly small matter from becoming a major issue which will affect you where you live as long as you are neighbors.